Supreme Court Justices Skeptical Over Upholding Prop 8

Supreme Court 3Reagan administration lawyer Charles J. Cooper was the first lawyer to speak during Hollingsworth v. Perry, arguing that Proposition 8, California’s ban on gay marriage, should be upheld. But the Supreme Court Justices expressed their share of skepticism.

The Los Angeles Times reports:

Chief Justice John G. Roberts, Jr. questioned Cooper as to whether his clients had standing to challenge lower court decisions overturning Proposition 8.

Justice Anthony Kennedy, seen as the swing vote on the issue, asked about the rights of children whose parents are already married.

“They want their parents to have full recognition,” Kennedy said to Cooper.

The Times added:

Justices Sonia Sotomayor, Elena Kagan, Stephen G. Breyer and Ruth Bader Ginsburg pounded Cooper for linking marriage to child-bearing, with Kagan asking if states could also prohibit couples over age 55 from getting married. Cooper responded that even in that case, at least one member of the marriage would likely still be fertile, a suggestion that drew laughter from the courtroom.

On the conservative wing of the court, Justice Antonin Scalia jumped most forcefully to Cooper’s defense, suggesting that it is unclear whether the children of gay couples may suffer long-term damage.

Cooper was up against Theodore Olson, who argued that an equal right to marry is basic to American liberty, while Cooper contended that the decision to change state marriage laws should be left up to voters in each state.

The Supreme Court will post audio of the arguments on its website around 1 pm and will release the full written transcript about an hour later. The court’s ruling is expected in June, and could be one of these four options:

*[T]he justices could uphold Proposition 8 and rule gay marriage is not a constitutional right. This would leave the issue in the hands of each state.

*The justices could dismiss the appeal on procedural grounds and return the Proposition 8 case to a federal court in San Francisco. This would likely lead to gay marriage becoming legal again in California.

*The third option would be for the court to strike down Proposition 8 as unconstitutional, but to do so on a narrow basis. The U.S. 9th Circuit Court of Appeals, for example, said that the voter initiative wrongly took away a right that gays and lesbians had won in the state court. If the justices were to adopt this approach, the decision would affect only California.

*Finally, the court could rule broadly that denying marriage to committed gay couples is unconstitutional, a decision that could legalize gay marriage nationwide.

We’ll keep posting updates as they become available.

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  • Scott Rose

    Scalia’s heterosupremacist bigotry should not be dignified by repeating it in order to rebut it.

  • Steve Rider

    The only reason Justice Scalia is uncertain of the well being of children with gay parents is that he, like other right wing ideologues, dissembles each and every study that shows results he does not favor.

    I think it would be a service to the nation if Justice Scalia were to renew his commitment to understand objective reality.

  • hyhybt

    You’ve left out the one where they require marriage only in states that already have civil unions.

    Why would a lack of standing not simply and directly put in place the highest ruling where there *was* standing, rather than sending the case back to another court and only “likely lead to”?

  • hyhybt

    Going by the questioning is unreliable… but there sure does seem to be reason for optimism here!

  • ariesbear

    States cannot hold a vote on a person”s civil rights. Absolutely not. Can we allow a vote on blacks, latinos, or whomever civil rights? The south would eventually ban all minorities from their states. Anyone protected by fundamental federal constitutional rights must not be subjected to discriminatory practice on a state level.

  • Wilberforce

    Excellent post, summarizing the arguments one at a time. Well done.

  • LubbockGayMale

    I love Justice Kagan!

  • technicolornina

    Come on, Kennedy. Millions of us are counting on you.

  • JRPActor

    WOW – that was FAST. Here in California I awoke to the lawyers press conference after their arguments. I feel hopeful as they both said not one of the Supreme Court Judges had any interest in furthering any ban, but on how to move forward, be it by state or federal.
    This is good news. Here in California, we were going to wait until our Anniversary in February to get married…but then came the Mormon sponsored bill known as Proposition 8. It was quite confusing. Voting Yes meant No more gay Marriages and voting No meant Yes let the marriages continue. Just like the butterfly ballots in Florida. Well, we did not wait. We were married on election day. The following morning the same sex weddings stopped. We have been together for 26 years…legally married for four of them. An honor to say that we got married on the Day Barack Obama got elected.

    So, now here in California, we have TWO CLASSES of citizens. THAT IS UNCONSTITUTIONAL. Gay Couples who are married and Gay Couples who cannot marry.

    The lame stream media seems to over complicate this and I found this on the web and think it is an ideal way of simplifying things that I hope some of you will share, be it on Facebook, your blog, the news, or with your family. I did not create this statement but I did modernize it some what.

    Let’s say your Church calls it a sin to watch DANCING WITH THE STARS. Then you simply do not watch DANCING WITH THE STARS. We can watch all the DANCING WITH THE STARS we want. Why would you want to try to OUTLAW watching DANCING FOR THE STARS? Why would you say that DANCING WITH THE STARS destroys the sanctity of the family or television, for that matter.
    You do not make fun of those who watch the show, nor do you try to separate those who watch from those who don’t watch. THIS IS WHY WE HAVE SEPARATION OF CHURCH AND STATE.
    Let’s say that our country was more Jewish and Muslim. “Some” of those religions SAY EATING PORK IS A SIN. Should we OUTLAW PORK? No more bacon, no more ham, no more pork chops? I DO NOT THINK SO. It’s so funny to hear the right complain DO NOT TELL US WHAT WE CAN OR CAN’T PUT IN OUR BODIES! OK, let’s allow ten year olds to go in and buy cigarettes and beer. WHY IS THAT NEVER MENTIONED? Why are they so dead set against legalizing marijuana when they also say WE DO NOT WANT OUR GOVERNMENT CONTROLLING WHAT WE PUT IN OUR BODIES? EVERYONE IS MAKING EVERYTHING SO COMPLICATED! If they move ahead and decide to follow the BIBLE and BAN GAY MARRIAGE then I say, we too, FOLLOW THE BIBLE. Any woman who is discovered not to be a virgin on her wedding night should be stoned to death the next day. My sister was never a virgin on any of her THREE WEDDING NIGHTS! If they want to save the institution of marriage, why are they not going after making INFIDELITY a crime? Making Divorce More Difficult. If EVERY CHILD deserves to have a MOTHER AND A FATHER, then we should remove children from the homes of divorced parents and those who have lost a parent to death. This is why many of us claim the RIGHT seem to pick and choose WHICH THINGS in the BIBLE they want to enforce. I would be more than happy to throw the first stone at my sister. But didn’t Jesus say something to the effect of THOSE WITHOUT SIN BE THE FIRST TO CAST A STONE? Hmmmmm

  • Joel J

    @Steve Rider: The justice is an anachronism and he ought to retire gracefully.

  • hyhybt

    One thing sticks out… pretty much everything I’ve read giving opinions on how this will turn out suggests that marriage opponents’ best hope is to confine things to California only, yet the lawyer arguing that side was fairly vehement in insisting that is impossible.

    I understand his goal is to win, but it still seems like that’s a point he’s more likely than not to regret making.


    “If EVERY CHILD deserves to have a MOTHER AND A FATHER, then we should remove children from the homes of divorced parents and those who have lost a parent to death.” Exactly. I’m also glad that Cooper’s suggestion that one person in an older couple would still be fertile make people laugh. The arguments about marriage being only for raising children are holding up less and less as time goes on…

  • Cyn

    Voting in each state was how the women’s rights movement got screwed. And abortion. Thank the gods Americans have mostly evolved to believe in marriage law, which is access to and division of assets, and the protection of the children if any. Not anyone’s god.

    And Justice Kagan was dead on right.

  • Cyn

    @ariesbear: Ariesbear, they already do if you have a uterus.

  • LadyL

    As a black gay female…I am tentatively hopeful. I am afraid to be anything else.

  • Jerry12

    The SCOTUS should rule that because of the Constitutional separation of Church and State, State and Local Governments can hold ONLY Civil Marriages of any two people that wish to be Married, and all such Marriages will qualify the parties to have all civil rights and privileges of all of the States. If the parties wish, they can have a Church Marriage ceremony receive the particular Religion’s additional rights and obligations that are peculiar to that particular Religion. End of problem Also, it keeps the Constitutional separation of Church and State intact.

  • Cyn

    @Jerry12: Amen, Jerry12.

  • Joel J

    Ted Olson was adamant that the right to marry is a fundamental individual right under the constitution and that denying that right to gays and lesbians is unequal treatment on its face. I thought that was the strongest argument in our favor. Olson and Boies will not back down on that principle. I hope they force the court to address the issue.

  • Reid Condit

    I can’t wait until June when this issue will — I predict — be resolved at least in favor of restoring gay marriage to Californians. Then we can return to the really important business of getting gay bathhouses operating again in San Francisco and securing the privacy rights of gay men — something that LGBT politicos are generally afraid to talk about except in the context of marriage. Are you listening: Mark Leno, Tom Ammiano, Scott Wiener, David Campos, Bevan Dufty and straight Supervisor Jane Kim, in whose District 6 the majority of bathhouses were once located?

  • 1EqualityUSA

    I’m so tired of this fight. Let’s hope that the SCOTUS has the spine required to rule in favor of equality, lest this fight continue on and on and on. Being a second class citizen while paying first class taxes is demoralizing. I’m counting on these eight justices to rectify this inequality. (I say, “eight” because Scalia is biased against us and cannot be counted on to rule fairly.) Clarence Thomas will listen to his wife, because he has no mind of his own. Alito will hide in the shadow of the Vatican. So, really, it comes down to six fair minded Americans who will decide if one set of Americans are more deserving of equal protection than another set of less popular Americans. I hope they have the spine to rule and not kick this divisive can down the road. Republicans must never taste power again, simply based on the complete bigots they chose for the bench.

  • Hunter

    @Jerry12: That’s actually the way it works: when a priest, minister or rabbi officiates at a wedding, he or she does so as an agent of the state, and must sign the same license that the county clerk or any other officiant has to sign.

    You can have a religious wedding without benefit of the license, but it’s not legally recognized.

  • EvonCook

    @Jerry12: Jerry, You are so very right!!! Get religion, the churches and religionists out of our government.

  • EvonCook

    @Reid Condit: Thank you, Reid Condit. I was never a desperate marriage freak, an assimilationist, nor did I want to serve in the military, nor did I want a “husband.” But I do want equal rights with my life partner of 35 years, and I would also like to have freedom of association (naked or not), freedom of my body and freedom of sex. Not to mention a separate equality with lesbians who seem to think they always should come first and that they own the gay movement these days. We are two similar but very different communities with shared interests, and I am a little tired of being guilt-tripped and pushed aside or off track by their agendas.

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